The Force of Law on Collective Bargaining: Empirical Research and Labor Law Reform

Abstract

Labor law reform is passionately debated among union activists and officials, labor economists, and industrial relations scholars. Despite the passion of the debate, it is based on almost no empirical evidence as to the operation of variations on law. Rather, for the most part it has been based on anecdotal evidence or deracinated theory. Since opportunities for law reform are infrequent and the consequences of bad reform will fall on many in our society with unhappy effects on the economy, it is important that we have the best possible information about what form law reform should take. We have tried to shed light on this important issue by using bargaining simulations to explore how three systems for resolving bargaining impasses function. Each of the impasse resolution systems involved presented unique issues. The challenge for a system that resolves impasses by relying on implementation of employer final offers and striker replacement, as does the private sector, is that it creates doctrinal problems that do not fit comfortably within the framework of the NLRA and likely create a highly unbalanced system of bargaining. The simulations here support the conclusion that it does indeed unbalance bargaining power and create a sense of grievance. Even though a simulation may bear no relationship to reality, it is worth considering whether a system that is perceived as unfair, even by those who benefit from it can achieve the NLRA's goal of labor peace. The alternatives to private sector impasse resolution - interest arbitration and the more-market model - have theoretical appeal for various reasons. Those who advocate reaching an agreement and reaching it in a rational and fair way would find interest arbitration attractive. On the other hand, those who prefer less government intervention in the ordering of the workplace ought to prefer resolving impasses using pure bargaining power. The simulations, however, suggest caution before choosing either method. The chief advantage to interest arbitration is the participants had very positive reactions to it and it thus appeared most likely to lead to labor peace and support for the system. The bargaining power impasse method, on the other hand, was strongly disliked by employer caucuses and thus appeared likely to lead to deeply felt grievances on the part of employers. Finally, these simulations confirm that law plays a role in shaping what we do. Each of these regimes was the same with the sole exception of the law of impasse resolution, and yet that fact alone had a powerful effect beyond that single event.